BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 28/11/2007 CORAM: THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR S.A.(MD)No.1040 of 2007 and M.P.No.2 of 2007 Ajmalkhan ... Appellant Vs. Doulath Begam ... Respondent
PRAYER IN S.A.890/1995
Second Appeal filed under Section 100 of the Code of
Civil Procedure, against the judgment and decree dated 22.12.2005 made in
A.S.No.58 of 2005 on the file of Sub Judge, Uthamapalayam, confirming the
judgment and decree dated 08.04.2005 passed in O.S.No232/04 on the file of the
District Munsif, Uthamapalayam.
!For Appellant … Mr.R.Surianarayanan
^For Respondent … Mrs.Mahalakshmi
:COMMON JUDGMENT
Heard the submissions made by Mr.R.Surianarayanan, learned counsel
for the appellant and Mrs.Mahalakshmi, learned counsel appearing for the
respondent and perused the available records produced in the form of typed set
of papers including copies of the judgments of the Courts below.
2.The plaintiff who proved to be unsuccessful before the Courts
below has brought forth this Second Appeal. Admittedly, both parties are
Muslims by religion and the appellant herein/plaintiff had married the
respondent herein/defendant. Claiming to have divorced the respondent/defendant
by pronouncement of triple ‘talaq’ on 21.08.2000, the appellant/plaintiff had
filed the above said suit for a declaration that the respondent/defendant had
lost her status as the wife of the appellant/plaintiff and for a consequential
injunction not to claim such a status. The suit was resisted by the
respondent/defendant denying the allegation that there was a valid pronouncement
of ‘talaq’ and valid communication of such a pronouncement of ‘talaq’.
3. Both the Courts below, on an appreciation of facts, came to the
conclusion that though the plaintiff was somewhat successful in substantiating
his contention that he pronounced ‘talaq’ in the absence of the
respondent/defendant and the pronouncement of ‘talaq’ was communicated to the
respondent/defendant under Ex.A1. However, the Courts below have declined the
relief of declaration and injunction holding that the pronouncement of ‘talaq’
was not valid as it was not preceded by an attempt of reconciliation involving
two arbiters – one from the family of the appellant/plaintiff (husband) and the
other from the father’s family of the respondent/defendant (wife). The Courts
below relied on the judgment of the Honourable Supreme Court pronounced in
Shamim Ara v.State of Uttar Pradesh & another reported in (2003-1-L.W 363),
wherein their Lordships of the Supreme Court approved the view expressed by a
Division Bench of Gauhati High Court in Rukia Khatun’s Vs. Abdul Khalique
Laskar, reported in (1981 1 GLR 375). The Division Bench of Gauhati High
Court in Rukia Khatun’s case prescribed two conditions for a valid ‘talaq’ they
are:-
“(i) Talaq must be for a reasonable cause;
AND
(ii) It must be preceded by an attempt of reconciliation between the husband and
wife by two arbiters, one chosen by the wife from her family and the other by
the husband from his family and if such attempts fails, ‘talaq’ may be
effected.”
4.The said view has got the approval of the Supreme Court in Shamim Ara
Vs. State of U.P & another reported in (2003-1-L.W 363) in clear and unambiguous
terms. Their Lordships of the Supreme Court made the following observation
referring to the view expressed by the Division Bench of the Gauhati High Court:
“We are in respectful agreement with the above said observation made by
the learned judges of the High Court”.
5. Relying on the above said view expressed by the highest forum of this
land, both the Courts below have held that the appellant/plaintiff had not
proved that there was an attempt of reconciliation between the husband and wife
by two arbiters chosen as aforesaid, preceding the alleged pronouncement of
‘talaq’. Hence the Courts below have come to the conclusion that the alleged
pronouncement of ‘talaq’ was ineffective and invalid. The learned counsel for
the appellant contended that the said observations made by in Shamim Ara’s case
was only obiter dicta and hence, the same could not be taken as a binding
precedent. In support of the said contention the learned counsel for the
appellant relied on the judgment of the Supreme Court in The Divisional
Controller, KSRTC Vs.Mahadeva Shetty and another reported in (2004 2 L.W 60) and
a judgment of the Division Bench of the Madras High Court in The Secretary,
Saliar Mahajana Higher Secondary Schools Vs.G.Subburaj & others reported in
(2005 1 L.W 48). In (2004 2.L.W 60) cited supra, the following were the
observation made by the Honourable Supreme Court
“while applying the decision to a later case, the court dealing with
it should carefully try to ascertain the principle laid down by the previous
decision. A decision often takes its colour from the question involved in the
case in which it is rendered. The scope and authority of a precedent should
never be expanded unnecessarily beyond the needs of a given situation. The only
thing binding as an authority upon a subsequent Judge is the principle upon
which the case was decided. Statements which are not part of the ratio
decidendi are distinguished as obiter dicta and are not authoritative. The task
of finding the principle is fraught with difficulty as without an investigation
into the facts, it cannot be assumed whether a similar direction must or ought
to be made as a measure of social justice. Precedents sub silentio and without
argument are of no moment. Mere casual expressions carry no weight at all, nor
every passing expression of a Judge, however eminent, can be treated as an ex
cathedra statement having the weight of authority.”
6.The Division Bench of the Madras High Court in The Secretary,
Saliar Mahajana Higher Secondary Schools Vs.G.Subburaj & others reported in
(2005 1 L.W 48) has made the following observation:-
“It may be mentioned that every direction of the Supreme Court is not a
precedent. It is only where the Supreme Court lays down a principle of law that
it will amount to a precedent. Often, the Supreme Court issues directions
without laying down any principle of law, in which case it is not a precedent.
For instance, the Supreme Court often directs appointment of someone or
regularization of a temporary employee or payment of salary etc., without laying
down any principle of law. This is often done on humanitarian considerations,
but this will not operate as a precedent binding on the High Court. For
instance if the Supreme Court directs regularization of service of an employee
who had put in 5 years service this does not mean that all employees who had put
in 5 years service must be regularized. Hence such a direction is not a
precedent”.
7.There can be no second opinion that both the judgment relied on by
the learned counsel for the appellant state the correct preposition of law
regarding binding precedent. But this Court is not in a position to accept the
contention of the learned counsel for the appellant that the view expressed by
the Honourable Supreme Court in Shamim Ara Vs. State of U.P & another reported
in (2003-1-L.W 363) regarding the conditions for pronouncing a valid ‘talaq’
can at no stretch of imagination be considered as obiter dicta. It clearly laid
down the law on this point that for ‘talaq’ to be valid fulfillment of those two
conditions should be established. The learned counsel for the appellant made a
feeble attempt to contend that the issue involved in the said case decided by
the Honourable Supreme Court was not one regarding the validity of ‘talaq’ but
was one regarding the effectiveness of the communication of ‘talaq’ allegedly
pronounced earlier; that the case could have been disposed of without even
considering the above said conditions necessary for pronouncement of valid
‘talaq’ and that hence the said observation made by the Honourable Supreme Court
could be termed obiter dicta. The said contention has got to be
discountenanced. The reasons are as follows:-
Shamim Ara’s case arose out of a petition for maintenance filed by
the wife under Section 125 of the Criminal Procedure Code. It was contended
therein by the husband that the marriage was dissolved by pronouncement of
‘talaq’ even prior to filing of the petition and that the pronouncement of
‘talaq’ was communicated during the pendency of the said proceedings. The
Honourable Supreme Court in the said case considered not only the question of
effective communication of alleged ‘talaq’ pronounced but also the validity of
such alleged ‘talaq’. While dealing with the said case, it was observed in para
6 of the said judgment of the Supreme Court as follows:-
“6. The singular issue arising for decision is whether the appellant can
be said to have been divorced and the said divorce communicated to the appellant
so as to become effective from 05.12.1990, the date of filing of the written
statement by the respondent no.2 in these proceedings.”
8.Referring to the said question framed by the Supreme Court in the said
case for determination, the learned counsel for the appellant contended that the
only question that arose for consideration before the Supreme court was
effectiveness of the communication of ‘talaq’ allegedly pronounced by the
husband. The said contention cannot be countenanced. A bare reading of the
above said passage extracted from the judgment of the Supreme Court will show
that there are two parts of the above said question framed by the Supreme Court
in Shamim Ara’s case. The first part deals with the question of valid
pronouncement of ‘talaq’ and the second part deals with the effective
communication of the same to the wife. While dealing with the first part, their
Lordship of the Supreme Court held that to be a valid ‘talaq’, it must have been
pronounced for a reasonable cause and it should have been preceded by an attempt
of conciliation as indicated supra. Therefore, this Court is not inclined to
accept the far reaching contention of the learned counsel for the appellant that
the above said observation made by the Hon’ble Supreme Court regarding the
conditions for a valid ‘talaq’ is only an obiter dicta and not a binding
precedent. Both the Courts below have concurrently found that there was no
attempt of conciliation in the manner indicated in the above said Judgments of
the Gauhati High Court and the Hon’ble Supreme Court.
10.The learned counsel for the appellant made an attempt to convince the
Court that Ex.B1 and Ex.B2 filed by the respondent/defendant themselves would
prove that there was an attempt of conciliation and that the same failed,
pursuant to which the appellant/plaintiff pronounced ‘talaq’. Of course, it is
true that there was an attempt of conciliation but the same was not the one in
compliance with the condition stipulated for a valid conciliation preceding
pronouncement of ‘Talaq’. Ex.B1 is the copy of the letter sent by the father of
the respondent/defendant to the Jamath. Ex.B2 is the copy of the communication
received from the Jamath in reply to the above said letter. It is clear from
the said documents that though the Jamath made an attempt to conduct an enquiry
and conciliate, the appellant/plaintiff did not respond. Even assuming that the
same was an attempt of conciliation, the same does not answer the requirement of
the conciliation contemplated in the above said Judgments of the Gauhati High
Court and the Supreme Court. The attempt of conciliation should have been made
by two arbiters:-one selected by the wife from her family and the other selected
by the husband from his family. Admittedly no such attempt of conciliation was
made by the arbiters selected by the parties as indicated above. Therefore,
factually also the appellant has miserably failed in his attempt to challenge
the finding of the Courts below that there was no conciliation before
pronouncement of ‘talaq’.
11.Except the contention that the reliance made by the Courts below
on the observation of the Hon’ble Supreme Court made in Shamim Ara’s case
concerning the condition for the pronouncement of a valid ‘talaq’, no other
substantial questions of law is proved to have involved in the second appeal.
Whether an attempt of conciliation in the manner described above should have
preceded the pronouncement of ‘talaq’ to validly bring an end to the matrimonial
relationship was the question considered and clearly answered by the Hon’ble
Supreme Court. When such a question of law was finally decided and declared by
the highest forum of this Country, the same cannot be accepted as a substantial
question of law. Therefore, this Court comes to the conclusion that the
appellant has not succeeded in proving that this second appeal involves any
substantial question of law to be decided by this Court. The only question of
law involved in the case has already been decided by the Supreme Court and the
Courts below have rightly applied the ratio laid down by the Supreme Court to
the facts of the case on hand.
12.Under these circumstances, this Court is of the view that there
is nothing to interfere with the concurrent judgments of the Courts below and
that the appeal is liable to be dismissed. Accordingly, the Second Appeal is
dismissed. However, there shall be no order as to costs as the Second Appeal is
dismissed at the stage of admission itself. Consequently, the connected
miscellaneous petition is also dismissed.
Mpk
To
1.The Sub Judge,
Uthamapalayam,
2.The District Munsif,
Uthamapalayam.